Recess Is Over: What the Supreme Court Has in Store for Us Now

Posted on Feb 14, 2014

If you’ve been wondering what has happened to the Supreme Court and all those transformative decisions it was supposed to issue during its 2013-14 term, you’re not alone.

Ever since four of the justices—Antonin Scalia, Samuel Alito, Clarence Thomas and Sonia Sotomayor—boycotted President Obama’s Jan. 28 State of the Union address, the high court has been on recess, and is not slated to reconvene until Feb. 21. The tribunal was also on break for nearly a month over the year-end holidays.

So what’s going on? Are Chief Justice John Roberts and his crew of black-robed colleagues competing with comedians Jon Stewart and Stephen Colbert to see who can set the record for most vacation time taken by a public figure, or is this just the calm before the much anticipated next jurisprudential tidal wave?

As the undecided cases on the current docket suggest, I’m opting for the latter interpretation, as no one—not even the most powerful federal appointees with lifetime tenure—can rival the late-night comics for extended time off the job.

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And it’s not as though the justices have been idle during their current break, either. To the contrary, they’ve been out on the hustings, delivering speeches, staying in the news and—intentionally or not—casting the tremendously important work of the court in a darkly comedic light.

The increasingly zany Scalia was in Hawaii on Feb. 3 addressing law students at the state university about the evils of the court’s infamous 1944 Korematsu opinion, which upheld the World War II internment of Japanese-Americans. Scalia warned that such practices could occur again, although he refrained from speculating as to whether the potential victims of any renewed internments might be drawn from the political left or right, or might consist of his own favorite scapegoats—gay and lesbian Americans. Scalia also neglected to mention that the U.S. already has the world’s highest incarceration rate.

Also on Feb. 3, Alito spoke in West Palm Beach, Fla., at a joint meeting of the Forum Club and the local county bar association attended by more than 1,100 people. Among other remarks, Alito said that he and his fellow justices never worry about public opinion when handing down rulings. Although press reports have indicated that Alito’s speech was peppered with anecdotes and jokes, the accounts were silent as to whether that particular comment, delivered by a longtime stalwart of the Federalist Society, drew laughter or simply a collective nod of approval.

In the meantime, the chief justice spent the February recess appointing more judges to the secret FISA Court, while Sotomayor and Justice Elena Kagan gave heartfelt talks at Yale Law School and at the New York City Bar Association, respectively, about their personal journeys to the highest court in the land.

But of all the recess orations none could match the one coughed up by Thomas at Palm Beach Atlantic University for sheer hypocritical detachment from reality. Addressing a gathering of students, the Ivy League-educated jurist who benefited from affirmative action and is known for remaining silent during the court’s oral arguments, declared that race relations in the United States today are worse than they were during his boyhood in Georgia. And just for good measure, he added that throughout his life he has experienced “more grief from northern liberal elites” than he ever received from bigots in the segregated South.